This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 2, 1996. We addressed an appeal of her October 8, 1996, decision and reversed and remanded the case in Texas Workers' Compensation Commission Appeal No. 962207, decided December 16, 1996. The hearing officer issued her January 8, 1997, decision in accordance with the remand and, with regard to the issue at the CCH, determined that the appellant (claimant) is not entitled to supplemental income benefits (SIBS) for the twelfth compensable quarter. The claimant appeals, seeking reversal, and the respondent (carrier) responds, seeking affirmance.

DECISION

We affirm.

The facts of this case are set forth in detail in our original decision and will not be repeated herein. However, it is important to note that the claimant was employed during the twelfth quarter SIBS filing period, but at less than 80% of his average weekly wage. His position at the time of the injury was construction superintendent and his position during the filing period was carpenter leadman.

In her original decision, the hearing officer found, with regard to the twelfth quarter SIBS filing period, that the claimant did make a good faith job search but that his underemployment during the filing period was not a direct result of his impairment. The claimant appealed her determination that his underemployment during the filing period was not the direct result of his impairment. The hearing officer's finding in the original decision that the claimant's underemployment was not a direct result of his impairment appeared to rely heavily on "market factors" and we held the evidence did not support that finding. We reversed because the hearing officer's findings on the SIBS "good faith" and "direct result" criteria appeared incongruous. Section 408.142(a)(3) and (4). However, we recognized other evidence in the record that may have affected the direct result criterion and we remanded for further consideration.

In her decision on remand, the hearing officer again found that the claimant's underemployment during the filing period was not a direct result of his impairment and, therefore, he is not entitled to twelfth quarter SIBS. Her finding with regard to the direct result criterion does not rely on economic factors, but rather on the claimant's failure to follow up on several superintendent positions and on turning down one such position. In the decision the hearing officer states:

Claimant also stated that he recently turned down a superintendent's job, since he did not feel physically capable of performing the job in what he considered the optimal manner. [Emphasis in original.]

Claimant's own testimony supports the conclusion that the job of a superintendent, his preinjury employment, could be performed in a manner consistent with his physical restrictions while still satisfying a potential employer's expectation that a superintendent perform his duties in a commercially reasonable manner, since it would be generally acceptable for a construction superintendent to perform such job in a generally sedentary manner, and performing such a job in this manner apparently would be consistent with the restrictions outlined in [Dr. K's] report of September 30, 1992. [Footnote omitted.]

Claimant's admitted physical ability to work as a carpenter leaderman [sic] would include the physical ability to work as a superintendent, since the job of a superintendent usually would require less physical exertion than the job of a carpenter leaderman [sic]. For this reason, it cannot be determined that Claimant's underemployment during the filing period in question was a direct result of his impairment.

Whether an employee has met the "direct result" criterion is a question of fact for the hearing officer to decide. Texas Workers' Compensation Commission Appeal No. 94533, decided June 14, 1994. The hearing officer correctly notes that the claimant has the burden of proof to establish that he has met the direct result criterion. Texas Workers' Compensation Commission Appeal No. 93630, decided September 9, 1993. The determination as to whether the direct result criterion has been met may be based on circumstantial evidence. Texas Workers' Compensation Commission Appeal No. 960684, decided May 20, 1996. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). Where there are conflicts in the evidence, the hearing officer resolves the conflicts and determines what facts the evidence has established. As an appeals body, we will not substitute our judgment for that of the hearing officer when the determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers' Compensation Commission Appeal No. 950456, decided May 9, 1995; Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref'd n.r.e.).

We conclude that the hearing officer's decision on remand is supported by the evidence. Her reliance on the claimant's impairment relative to his underemployment avoids incongruous good faith and direct result findings. Dr. K states that the claimant "could do some restricted superintendent work." The claimant testified at the CCH that a superintendent's job is less strenuous than a leadman job and the hearing officer determined that he had the ability to perform a superintendent job. The claimant said that during the filing period he had two or three opportunities to work as a superintendent but that he could not take the positions because he was unable to contact the employers who had contacted him about superintendent positions. He explained that his leadman job did not allow him to return telephone calls or follow up with the two or three employers who wanted to hire him as a superintendent. He said that by the time he returned each call the position had been filled. The claimant's request for appeal states "I found superintendent's jobs, one I turned down because I felt that I could not afford a new truck, the other I had until I could no longer handle."

The hearing officer determined that the claimant's underemployment was the direct result of his self-limitation to a leadman position, not his impairment. We have held that an employee's self-limitation during the filing period may support a finding that he has not satisfied the direct result criterion. Texas Workers' Compensation Commission Appeal No. 970163, decided March 7, 1997. The hearing officer determined that the claimant had the ability to perform the tasks required of a superintendent and that he either failed to follow up on or rejected offers of employment as a superintendent. A hearing officer may consider why an employee rejects offers of employment that he is physically able to perform in determining whether his unemployment or underemployment is a direct result of his impairment. The hearing officer's explanation with regard to why the claimant's underemployment was not a direct result of his impairment resolves the incongruity that concerned us in remanding the case. Therefore, the finding that the claimant's underemployment was not a direct result of his impairment and the determination that he is not entitled to twelfth quarter SIBS are supported by the evidence and are not so weak or against the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust. Cain, supra.

The decision is not against the great weight and preponderance of the evidence and, therefore, we affirm.

Christopher L. Rhodes
Appeals Judge

CONCUR:

Stark O. Sanders, Jr.
Chief Appeals Judge

Alan C. Ernst
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On August 6, 1996, a hearing was held. He (hearing officer) closed the record on August 23, 1996, and determined that respondent (claimant) was entitled to supplemental income benefits (SIBS) for the eighth and ninth compensable quarters. Appellant (carrier) disputes several findings of fact that relate to medical treatment provided by various doctors, findings as to direct result and inability to work, and findings related to the claimant's request for SIBS for the eighth quarter. Claimant replies that the decision should be affirmed.

DECISION

We affirm.

Claimant fell at work in _____. She was an office worker at the time. According to the opinion of Dr. S, the designated doctor, claimant had a "right hemilaminotomy at L4-5 and L5-S1 with excision of herniated nucleus pulposus and lateral recess decompression and medial foraminotomy of April 5, 1993." Dr. S refers to claimant's pain and numbness in her lower back and leg and the possible need for continued treatment by "a neurosurgeon, orthopedic surgeon, or physical medicine rehabilitation specialist," saying further that "if she has exacerbations of her symptomatology, she may need therapeutic intervention, including, but not limited to comprehensive physical therapy, trigger point release, as well as medications for pain, and pharmacologic and non-pharmacologic pain management."

The hearing officer found that claimant was unable to work "at any position" from November 10, 1995, through May 8, 1996 (the filing periods for the eighth and ninth quarters), "because of depression and chronic pain that resulted from her lower back injury." The carrier cites Texas Workers' Compensation Commission Appeal No. 961122, decided July 26, 1996, stating that it says the inability to work was based on depression and depression was not part of the rated injury; therefore the direct result test was not met. Appeal No. 961122 said that "the unemployability/underemployability was due to the depression" pointing out that a back injury had been the basis for impairment. While it is noted that not all judges on the panel joined in the rationale of the opinion and the holding spoke in terms of "due to" rather than that the impairment was not part of the basis for unemployability, Appeal No. 961122 provides no guidance because the finding in the case under review is not limited to depression but says that pain from the "lower back injury" (the lower back was the basis for impairment) and depression were the bases of claimant's inability to work. Texas Workers' Compensation Commission Appeal No. 960008, decided February 16, 1996, emphasized the statutory language calling for a direct result and indicated that there could be more than one contributing factor. Texas Workers' Compensation Commission Appeal No. 952082, decided January 10, 1996, said that there was no requirement to show that the impairment was the sole cause of the unemployment. In addition, Texas Workers' Compensation Commission Appeal No. 960880, decided June 18, 1996, said that no modifiers, such as the word, "primary" had been grafted on to the statutory standard of "a direct result." Recently, Texas Workers' Compensation Commission Appeal No. 961812, decided October 30, 1996, remanded for application of the correct standard when the decision under review said that factors other than the impairment "to an appreciable degree" were the bases for unemployment and then found that the "a direct result" test was not met.

With pain from the impairment being part of the basis for unemployment, the cases above support the finding that the "a direct result" test was met and sufficiently supported by the evidence. While carrier also argues that pain is neither an injury "nor is it ratable under the AMA Guidelines [Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides)]," we note the point made by Dr. S's report which allowed 10% impairment for two level spinal surgery and then commented that claimant's "symptomatology" may require pain management and therapeutic intervention. We do not agree with carrier that claimant's symptoms of pain from the two-level spinal surgery must somehow be treated separately from the surgery or the impairment. While the Appeals Panel has held that "pain alone" is not a compensable injury, Table 49 of the AMA Guides specifically includes "pain" as part of one of the foundations for impairment to be assigned for unoperated back lesions and also specifically provides 10% impairment for "surgically treated disc lesion, with residual symptoms." We conclude from the AMA Guides and Dr. S's report that "symptoms" may include pain. Dr. N on May 10, 1996, said that claimant should not "return to work" until "resolution of pain." In February 1996 Dr. N had said that two months before claimant's "chronic pain" was "stabilizing"; he added that claimant had been so "despondent and desperate" that she at one time "contemplated putting a Magnum 357 to her head." Claimant testified that some days she is in so much pain, she could not get out of bed and also said that she "couldn't even wear my shoes, I couldn't wear my clothes, I couldn't drive. . . ." Dr. N also wrote on March 21, 1996, that claimant's pain had been reduced by adjustment of medication, "with resulting increase in some functionality." (Emphasis added.) As stated, there is sufficient evidence to support the finding that claimant's unemployment was "a" direct result of her impairment.

Carrier, in its appeal, stresses that Dr. N is "the only doctor saying she is completely unable to work. . . ." It is true that a physical therapist conducted a functional capacity evaluation in 1994 which said that "if she is to return to work, it should be sedentary or light level activities. She needs the ability to get up and change posture frequently. She would need to start out at less than eight hours." This evaluation correctly concluded its assessment by commenting that claimant could be released to return to work, but "per physician only." The record does contain a short note from Dr. C who apparently was claimant's treating doctor at the time, in 1994 which says that claimant may return to work with no lifting over 10 pounds and "no prolonged sitting or standing over 15 minutes without position changes." The hearing officer refers to Dr. C as also saying that claimant could not return to work. There are no records of Dr. C, other than the short note mentioned in this record, but claimant did testify that Dr. C in addition to Dr. N, during the filing period of November 10, 1995, to February 7, 1996, told her she should not return to work. The part of Finding of Fact No. 7 that refers to Dr. R providing pain management is also referred to in Dr. Co IME report, so there is sufficient evidence to support Finding of Fact No. 7 which said that Dr. C said she could not return to work and Dr. R provided pain management. Dr. Co in January 1996 said that he could see no "objective" reason why claimant could not return to work at a sedentary level "on a gradual basis beginning 1-2 hours per day with increase to a full 8 hour day over a 2-3 month period." We note that while Section 408.122 requires objective evidence for impairment income benefits, Section 408.142(a)(2) and (4) make no such requirement.

Four findings of fact that address Dr. N's reports are sufficiently supported by copies of those reports in evidence. Three other findings of fact, which address claimant's filing of her request for SIBS for the eighth quarter, were listed in the appeal, but carrier at the hearing stated that it no longer contested the time of filing of claimant's request for SIBS for the eighth quarter. The assertions of error will not be considered on appeal when the issue was not contested at the hearing. The final finding that controls this decision was that claimant was unable to work at any position during the filing periods of November 10, 1995, through May 8, 1996. This finding is not attacked as unsupported by any evidence that claimant is unable to work; on the contrary, carrier's appeal acknowledges that Dr. N is "the only doctor saying she is completely unable to work. . . ."

The hearing officer is the sole judge of the weight and credibility of the evidence. See Section 410.165. He could choose to give more weight to Dr. N's three documents prepared in the filing periods in question and one prepared two days post such periods than he did to Dr. Co's opinion. He could view Dr. N's instruction not to return to work until her pain is resolved as another form of restriction placed on claimant which precluded any work. While Dr. N spoke in terms of not returning to work or that she should not "go back" to work, we note that claimant's prior work was sedentary (office work) to begin with; in addition, with claimant's testimony of inability to dress and Dr. N's reference to her desperation, the facts and circumstances of this case allow an interpretation of the medical reports as precluding any work. Compare to Texas Workers' Compensation Commission Appeal No. 941559, decided January 5, 1995, which said that the absence of a release to return to work was not sufficient to forego the good faith attempt to find work. The hearing officer determined that claimant could do no work and that determination is not against the great weight and preponderance of the evidence.

We note that while Dr. Co questioned claimant's magnification of symptoms, the functional capacity evaluation commented that claimant's "effort level was good." In addition, claimant testified that she was told by an agent of the carrier that she must attempt to find work. She said that even though Dr. N told her not to work, she applied for three jobs and provided copies of those applications made in February, March, and April 1996; she also sent her resume to 14 other employers during the same timeframe. She indicated that if offered a job, she did not know how she would do it because she could not wear shoes and could only sit, walk and stand for short periods, but she would try. While the case did not turn on the good faith aspect of seeking employment because the hearing officer found an inability to work, we note that Texas Workers' Compensation Commission Appeal No. 950471, decided May 10, 1995, allows a hearing officer to consider the mental limitations of a claimant in determining whether the attempt to obtain employment was made in good faith since the individual, not a reasonable man, is the basis for determining good faith. In this vein, it is noted also that the "good faith" standard in Sections 408.142 and 408.143 is not directly tied to the claimant's impairment in contrast to the "a direct result" standard which is tied to impairment.

Also introduced in this hearing was a copy of Texas Workers' Compensation Commission Appeal No. 960407, decided April 10, 1996, which affirmed a finding of entitlement to SIBS for the seventh quarter for this claimant.

With no indication that the hearing officer incorrectly applied the law to the issues before him, and having reviewed questions of direct result and inability to work, along with all other elements of SIBS, under a standard of whether the findings and determination were against the great weight and preponderance of the evidence, we find sufficient evidence to affirm. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Joe Sebesta
Appeals Judge

CONCUR:

Gary L. Kilgore
Appeals Judge

Alan C. Ernst
Appeals Judge

This appeal arises under the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). This case returns on appeal from a remand ordered in Texas Workers' Compensation Commission Appeal No. 960684, decided May 20, 1996. The issue involved the eligibility of the appellant, (claimant), for the second compensable quarter of supplemental income benefits (SIBS). The hearing officer, who decided the case on existing evidence and did not hold an additional hearing. The same result was reached as in the first decision: that the claimant failed to prove that his unemployment was a direct result of his impairment, notwithstanding that he had proven that he made a good faith search for employment commensurate with his ability to work and that he had proven that he continues to have significant lasting effects of his injury. Claimant appeals this determination, arguing that the hearing officer has been consciously indifferent to the evidence and to previous Appeals Panel decisions on his claims for SIBS, including Texas Workers' Compensation Commission Appeal No. 960873, decided June 18, 1996. The employer and carrier is a self-ensured governmental entity ( (City)) and has filed no response to the appeal.

DECISION

Reversed and rendered.

Claimant sustained a back injury during an automobile accident, on _____, while employed as risk manager for the (City). He applied for employment during the qualifying period in issue, which was August 16 through November 14, 1995. Although (City) asserts, in its brief submitted on remand to the hearing officer, that claimant only searched for risk management positions, essentially every one of the applications for this quarter indicates interest in positions not only in risk management but in planning, public works, management, streets, and insurance coordination. A willingness to work temporary or permanent jobs was indicated by claimant in the applications. The hearing officer found that claimant placed eight applications during the filing period.

Pertinent to the filing period in question, the claimant's treating doctor, Dr. S, stated that claimant had two herniated cervical discs, and a herniated lumbar disc, all of which caused chronic pain. He stated that claimant could not work more than four hours a day, 20 hours a week, and had limitations on the ability to stoop and bend, and a 10 pound lifting limit. A second-hand reference in a report from a vocational counsellor, Mr. F, indicated that a Dr. K opined in July 1995 that claimant could work eight hours a day by alternately standing and sitting, and that he had a 40-pound lifting limit.

The hearing officer has correctly pointed out that the provisions regarding good faith job search and direct result are two different provisions that must each be satisfied. This is what the Appeals Panel has emphasized. The hearing officer agreed that claimant's search for part-time employment was a good faith search, and she gave credence to Dr. S's restrictions in her findings of fact rather than those of Dr. K that are alluded to by the vocational counsellor. What concerns us is that the hearing officer appears to still require express, direct evidence that claimant did not get a job because of his impairment. The closing paragraph of the discussion states:

The Appeals Panel has held that medical evidence of significant lasting effects of the claimant's injury and his inability to return to his former employment may provide evidence of direct result. Yet, a direction that such evidence will always prove direct result was not made. In this case, claimant was able to prove only part of the above stated holding: that he continues to have significant lasting effects of his compensable injury. Claimant testified he could return to the position of manager because such work would allow him the flexibility to work within his restrictions. Thus the circumstantial evidence was not sufficient to overcome the doubt that claimant's unemployment was a direct result of his impairment. Although there was insufficient evidence to establish precisely what caused claimant's unemployment if not his impairment, this void does not compel a finding that claimant's unemployment was the direct result of his impairment. The Act does not provide that claimant's unemployment or underemployment will be presumed to be a direct result of his impairment unless the carrier can prove that otherwise.

We agree that our holdings in the area of SIBS are not checklists that are to be strictly applied to the facts of each case, nor have we established a presumption or a two-pronged test for direct result. However, we are concerned that the hearing officer may have applied an erroneous burden of proof by indicating that claimant did not produce evidence "to overcome the doubt" of direct result. A claimant is not required to prove conclusively or beyond a reasonable doubt that his unemployment or underemployment results from his impairment. In the ordinary course of applying for positions, any job seeker will risk losing a job to someone else with more qualifications, or someone who interviews better. In that particular situation, those may be the reasons that the specific job was not attained. However, this does not in and of itself defeat the "direct result" link to the impairment of the overall status of unemployment or underemployment. See Texas Workers' Compensation Commission Appeal No. 951019, decided August 4, 1995. This is one reason why the Appeals Panel suggested that the direct result provision should be analyzed on the basis of circumstantial evidence showing that there is medical evidence of lasting effects of the injury, which the hearing officer agrees was present in this case, as well as the absence of any intervening injury or illness. The great weight and preponderance of the evidence for this quarter is against the hearing officer's determination that claimant's unemployment for the second quarter did not directly result from his impairment. That great weight includes the restrictions by Dr. D, the nature of the injuries, the lack of an intervening factor, and the claimant's inability to find a job for which he was qualified. There appears to be little that is substantially different from the prior quarter, which we reversed and rendered in Texas Workers' Compensation Commission Appeal No. 960873, supra.

We pointed out a possible anomaly in the hearing officer's reasoning on direct result that might cause more harsh consideration of claimant's SIBS eligibility in his present state of unemployment than if he went back to part-time work. The hearing officer has dismissed the concern by noting that it would be the burden of claimant to prove that he was underemployed (earning less than 80% of his preinjury wage) and that there was no evidence to support underemployment. Our concern about the apparent anomaly remains.

We emphasize that an injured employee who maintains the same job search pattern for several quarters after the end of the impairment period, with no increase in the number of contacts made or no broadening of the types of jobs sought and who utterly rebuffs the assistance of a vocational counsellor, may fail to satisfy a "good faith" job search standard that was met in earlier quarters. We reverse and render a decision that claimant was eligible for the second quarter of SIBS on the "direct result" criterion.

Susan M. Kelley
Appeals Judge

CONCUR:

Tommy W. Lueders
Appeals Judge

Philip F. O'Neill
Appeals Judge

In Texas Workers' Compensation Commission Appeal No. 960801, decided June 11, 1996, the Appeals Panel reversed and remanded the decision and order of the hearing officer to reconsider the question of the appellant's (claimant) entitlement to supplemental income benefits (SIBS) for the first, second and third compensable quarters. The hearing officer, (hearing officer), determined that it was unnecessary to further develop the evidence and, thus, she did not reconvene the hearing. The hearing officer determined that the claimant was not entitled to SIBS for the quarters at issue. In his appeal, the claimant essentially argues that the hearing officer's determination that he is not entitled to first, second and third quarter SIBS is against the great weight and preponderance of the evidence. In addition, the claimant argues that the respondent (carrier) waived its right to contest SIBS in this instance by failing to timely request a benefit review conference under Section 408.147. We affirmed that portion of the hearing officer's decision in our decision in Appeal No. 960801 and we will not discuss that issue again. In its response, the carrier urges affirmance.

DECISION

We reverse and render.

It is undisputed that the claimant, who is 66 years old, sustained a compensable injury to his back on (date of injury), in the course and scope of his employment with (employer) for whom the claimant had worked since 1966. The claimant testified that, when he was in the fourth grade, he left school to get a job and assist his family. He stated that, as a result of leaving school at that time, he has limited literacy skills and is not able to complete a job application or read the newspaper. The claimant testified that he had no plans to retire at the time of his injury, noting that he had purchased a new home several months before the injury. He also stated that he attempted to return to work in a light-duty position with the employer after his injury, but he was not able to perform the duties of the position and he left it. The claimant testified that he has subsequently retired from his employer, at the age of 65, because he was not physically capable of working and that he thereafter began receiving retirement benefits. See Texas Workers' Compensation Commission Appeal No. 941382, decided November 28, 1994, where the Appeals Panel stated that although retirement is a factor that can be considered in determining SIBS eligibility it does not, in and of itself, end SIBS entitlement where the injury and resultant impairment caused the retirement.

On April 15, 1993, the claimant had back surgery, a decompressive laminectomy from L2 to the sacrum. (Dr. G), an orthopedic surgeon, performed that surgery. The claimant continued treating with Dr. G until November 2, 1993, at which time Dr. G certified that the claimant reached maximum medical improvement (MMI), as of that date, with a 20% impairment rating (IR). Dr. G also released the claimant from his care, on November 2, 1993, advising the claimant that there was nothing else that could be done for him. The carrier disputed the claimant's IR and (Dr. S) was selected as the designated doctor. In Texas Workers' Compensation Commission Appeal No. 941607, decided January 10, 1995 (unpublished), the Appeals Panel affirmed the hearing officer's determination giving presumptive weight to the designated doctor's 10% IR.

The claimant filed suit in the District Court of County on the IR issue. On August 11, 1995, the District Judge signed a judgment on the jury's verdict awarding the claimant a 20% whole body IR as a result of his compensable injury. That judgment was not appealed and has become final.

The claimant testified that he has not worked since his surgery. He stated that he improved somewhat after his back surgery; however, he does not believe that he has ever gotten to the point that he "could give a man a day's work like I would before I got hurt." The claimant said that he has severe limitations on his activities since his injury. He stated that he cannot lift more than 15 to 20 pounds, that he can only sit or stand for about 20 to 30 minutes, that he can only drive for short distances, that he can wash dishes for about five to 10 minutes before he has to sit down and rest, and that he can go grocery shopping, buying things a little bit at a time. Finally, the claimant stated that he attempted to rake leaves shortly before the hearing and, after 10 minutes of raking, he had to stop and lay down because of the pain, which was so intense he was unable to sleep that night.

The claimant testified, and his testimony was uncontroverted, that in February 1996, he returned to Dr. G for the first time since he had been released from Dr. G's care in November 1993. In a letter dated February 27, 1996, Dr. G stated, as follows:

[Claimant] has had multiple spinal surgeries in the past. He underwent a total laminectomy from L2 to the sacrum in April of 1993. He has done reasonably well following the surgery, but unfortunately, is unable to perform any gainful employment.

The only medical evidence offered by the carrier was a Report of Medical Evaluation (TWCC-69) from (Dr. W), whose involvement in the claim is unexplained, stating that the claimant reached maximum medical improvement (MMI) on September 8, 1992, with an impairment rating (IR) of zero percent. On the TWCC-69, Dr. W also states that the claimant could return to light-duty work. We note that this report precedes the claimant's spinal surgery by some seven months.

At issue in this case is the claimant's entitlement to SIBS in the first, second and third compensable quarters. The dates of those quarters are December 28, 1994, to March 28, 1995; March 29 to June 27, 1995; and June 28 to September 26, 1996, respectively. The claimant maintains on appeal, as he did at the hearing, that he is entitled to SIBS for those quarters despite his not having looked for work because he had no ability to work during the filing periods for those quarters. In Texas Workers' Compensation Commission Appeal No. 931147, decided February 3, 1994, the Appeals Panel stated that if an employee established that he or she has no ability to work at all during the filing period, then seeking employment in good faith commensurate with this inability to work "would be not to seek work at all." In Texas Workers' Compensation Commission Appeal No. 941382, decided November 28, 1994, we emphasized that the burden of establishing no ability to work is "firmly on the claimant" and in Texas Workers' Compensation Commission Appeal No. 941334, decided November 18, 1994, we noted that an assertion of inability to work must be "judged against employment generally, not just the previous job where the injury occurred." We have likewise noted that medical evidence affirmatively showing an inability to work is required, if a claimant is relying on such inability to work to replace the requirement of demonstrating a good faith attempt to find employment. Appeal No. 941382, supra; Texas Workers' Compensation Commission Appeal No. 941275, decided November 3, 1994. Finally, we have emphasized that a finding of no ability to work is a factual determination of the hearing officer which is subject to reversal on appeal only if it is so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Appeal No. 951204, supra; Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

In this instance, the hearing officer determined that claimant had some ability to work in the filing period. Specifically, she stated:

Although Claimant's argument in this vein is legally correct, and the Hearing Officer is sympathetic to the likelihood that Claimant's extensive surgery, advanced age, and limited education would substantially hinder an employment search, the Hearing Officer is not persuaded that these factors would completely preclude all gainful employment, notwithstanding the contrary letter of Claimant's treating doctor, since that letter constitutes a merely conclusory opinion, and does not state Claimant's physical limitations with specificity, indicating how those limitations would be expected to preclude all forms of gainful employment. See Appeals Panel Decision #'s 960106 and 941696.

As we have previously noted, an assertion of no ability to work must be supported by medical evidence or be so obvious as to be irrefutable. Texas Workers' Compensation Commission Appeal No. 950654, decided June 12, 1995. The only medical evidence presented in this case are Dr. G's records and the TWCC-69 dated some seven months before the claimant's surgery stating that he could return to light-duty work. Dr. G's February 27, 1996, report states that the claimant "is unable to perform any gainful employment." With the record so developed and particularly given the absence of medical evidence indicating that the claimant could work at any point except seven months prior to his back surgery, we find the hearing officer's determination that the claimant retained some limited capacity for gainful employment in the filing period to be so contrary to the great weight and preponderance of the evidence, the uncontroverted evidence from Dr. G that the claimant was unable to work, as to be clearly wrong or manifestly unjust. Pool, supra; Cain, supra. Accordingly, the hearing officer's determination that the claimant is not eligible to receive first, second and third quarter SIBS because he did not make a good faith effort to find employment commensurate with his ability to work likewise does not find sufficient evidentiary support in the record, in that the claimant's uncontradicted medical evidence established that he had no ability to work in the filing periods for those quarters. We reverse the determination that the claimant did not make a good faith job search and find that the claimant was excused from making a job search in this instance because he had no ability to work in the filing periods. Compare Texas Workers' Compensation Commission Appeal No. 961333, decided August 19, 1996.

Finally, we briefly comment upon the hearing officer's apparent belief that the evidence from Dr. G was "suspect" because it appears that it "was prepared solely for the purpose of assisting the Claimant in prevailing at the Contested Case Hearing." The hearing officer noted that she did not believe that Dr. G's report was worthy of credence because it was prepared at a time that Dr. G had not seen the claimant for at least a year. As we noted above, the uncontroverted evidence in this case is the claimant's testimony that he had an appointment with Dr. G in February 1996 before the February 27th report was prepared and that Dr. G examined him at that time and discussed with the claimant the fact that he was not capable of working. We cannot agree that the fact that the claimant developed evidence prior to the hearing somehow calls that evidence into question. To the contrary, that is standard practice in litigation. It does not seem unusual in this instance that a party with the burden of proof on an issue would gather his evidence prior to the hearing where that issue was to be decided. We have specifically stated that where, as here, a claimant is alleging that he had no ability to work in the filing period, it is incumbent upon the claimant to present medical evidence in support of that claim in order to establish his SIBS entitlement. We note that, in June 1995 at the end of the filing period for the third compensable quarter, the claimant's 10% IR had not yet been overturned in the District Court; therefore, he did not meet the threshold requirement for SIBS of at least a 15% IR. In addition, the claimant had been released from Dr. G's care in November 1993 and had been advised by Dr. G that there was nothing else he could do for the claimant. At that point, there was no issue concerning the claimant's ability or inability to work in existence. And, as such, there was no reason for the claimant to develop evidence on a nonissue, particularly in light of the fact that he was not receiving ongoing medical treatment. Where no additional treatment options are available to the claimant, it is unreasonable to expect that the claimant would continue to go to the doctor, at the expense of the carrier, on the outside chance that medical evidence from that period might later become necessary. Accordingly, we find no merit in the basis given by the hearing officer for rejecting the uncontroverted evidence from Dr. G that the claimant did not have any ability to work in the filing periods for the first, second and third compensable quarters.

We reverse the hearing officer's determination that the claimant is not entitled to SIBS in the first, second and third compensable quarters and render a new decision that the claimant is entitled to those benefits.

Elaine M. Chaney
Appeals Judge

CONCUR:

Stark O. Sanders, Jr.
Chief Appeals Judge

Robert W. Potts
Appeals Judge

This appeal arises under the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On May 14, 1996, a contested case hearing (CCH) was held in ____________, Texas with (hearing officer) presiding as hearing officer. The issue(s) were:

1.is the compensable injury a producing cause of the Claimant's depression resulting in psychiatric treatment;

2.is the Claimant entitled to supplemental income benefits [SIBS] for the fourth compensable quarter;

The hearing officer determined that the claimant's compensable injury was a producing cause of the claimant's depression and resultant psychiatric care and that claimant is entitled to SIBS for the fourth compensable quarter.

Appellant, carrier, appeals on the grounds that numerous other stressors are the cause of claimant's depression, that the claimant's inability to work is not "a direct result of his compensable injury," and in any event even if the depression is a result of the compensable injury the inability to work is not "a direct result of the employee's impairment." Respondent requests affirmance.

DECISION

We affirm in part and reverse and render in part.

It is undisputed that claimant had been employed as a truck driver by the employer, a large construction company. On [Date of Injury], claimant sustained a compensable back injury which ultimately required a laminectomy at the L3-4 level and subsequently a spinal fusion at the same level on June 7, 1993. A designated doctor certified maximum medical improvement (MMI) on March 17, 1994, with a 19% impairment rating (IR) based on the back injury; claimant had returned to work with the employer in January 1994 (before he was assessed as having reached MMI) in a light-duty position assisting the dispatcher/locator. The work of the dispatcher/locator was to dispatch trucks to various sites and track the location of various pieces of heavy equipment, sending that equipment where and when needed. Several months after beginning his duties as the assistant, the regular dispatcher/locator quit and claimant was assigned all the duties of that position. Uncontroverted testimony from both the claimant and carrier witnesses established that claimant's duties required him to work 10 to 12 hours a day, 5 1/2 days a week and that the work, while not physically demanding, was very stressful. Claimant had a 20-pound lifting restriction and had been told to periodically stand up and walk around. Whether claimant was allowed to walk around is in dispute. Apparently, sometime in the summer of 1993, employer's management changed.

Claimant testified that he received physical therapy and other treatment after he returned to work but continued to have severe back pain that limited his activities. In a June 13, 1995, progress note, Dr. S notes claimant has "some depression." A July 11, 1995, progress note has an impression "Rule out development of significant depression related to chronic pain." Dr. S recommended claimant get "back to a more normal 40 hour week work schedule. . . . " An August 8, 1995, progress note notes delay in getting carrier approval and "the main concern is progressive disability and increasing depression despite our best efforts at . . . use of antidepressant agents." The medical records, and claimant's testimony, indicate that claimant became evermore severely depressed, wrote a note to his wife (indicating severe depression) and on November 4, 1995, was admitted to the psychiatric unit of a regional medical center by Dr. R. Claimant was discharged November 9, 1995.

A report dated December 14, 1995, a report by Dr. P, a doctor at the medical center, states:

More recently [claimant] developed severe depression which required inpatient evaluation and treatment by [Dr. R], Senior Staff, [medical center] psychiatrist. His depression is thought to be associated with his chronic low back pain and although improved he is still considered disabled from depression and unable to return to work.

Dr. G, another psychiatrist at the medical center, in a report dated February 16, 1996, stated:

I also felt it was important to treat him as an inpatient to address his chronic left sacroiliitis aggressively together with his depression in order to maximize his improvement, i.e., I did not feel one problem would improve significantly without paying attention to the other. His back pain, secondary to history of work related injury appeared a strong contributor to his depressive symptoms and had failed intensive outpatient treatment as well.

Dr. P in a March 7, 1996, report stated that it was his opinion that claimant's depression was as a result of "his chronic unrelenting low back pain." Dr. R in a comment dated March 20, 1996, states:

I felt his depression was brought on by his chronic low back pain and his inability to continue full-time work. In my opinion, his low back pain and his chronic pain syndrome precipitated and aggravated his depression.

Regarding claimant's ability to work, Dr. P, in a report dated May 9, 1996, wrote:

[Claimant] is unable to return to work because of his chronic low back pain due to work-related injury of July, 1992. He continues to experience back pain and is being followed by [Dr. S] for his chronic low back pain. He is being followed by [Dr. E], psychologist, [medical center] for his ongoing depression. There is no date of anticipated release of return to work at this time.

Dr. E, in a report dated may 10, 1996, wrote:

[Claimant] was seen by myself on 8/25/95 for psychological evaluation regarding his history of chronic pain. That evaluation indicated psychological factors affecting physical condition. The patient was seen for follow-up on 10/25/95 for individual psychotherapy and pain management.

* * * *

I believe his psychiatric admission for depression on 11/4/95 was warranted. I base this upon my post-hospitalization evaluation and subsequent follow-up in which recurrent bouts of acute depression have been noted, such as on 3/1/96 and 3/4/96.

Carrier requested a record review by Dr. FP who in a report dated April 21, 1996 summarized:

It is my opinion that the patient demonstrates some stressors and a psychological adjustment reaction which in my judgement is related to difficulties he has encountered on his job recently. However, it is also my opinion that these difficulties are not likely related to difficulties adjusting to his job situation with the changes imposed after his accident of July 27, 1992. I do not believe that the admission to the psychiatric hospital was warranted or necessary.

* * * *

First addressing the issue of whether claimant's compensable back injury was a producing cause of his depression and attendant psychiatric treatment, carrier points to other stressors, such as financial problems, frustration in dealing with carrier, changes in management, and claimant's stressful job as factors which caused claimant's psychiatric problems. Carrier cites specific instances and excerpts of various reports to support its contention. While everything carrier alleges is contained in the record, we note the medical evidence from Dr. S, Dr. R, Dr. P, Dr. G and Dr. E all established a causal connection that claimant's compensable back injury and chronic pain, at least in part, caused claimant's depression. Opposed to this medical evidence is Dr. FP's record review and carrier's argument that all of claimant's other stress factors caused claimant's depression rather than the work injury. At best, we find the evidence on this point in conflict. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and it is the hearing officer's duty to resolve inconsistencies and contradictions in the evidence. Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true of medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). Consequently, we find that the hearing officer could well accept the opinions of five doctors (including a Ph.D psychologist) over the opinion of carrier's psychologist and argument. Accordingly, we affirm the hearing officer's determinations that claimant's compensable back injury was a producing cause of his depression as being supported by the medical evidence.

On the second issue of whether claimant is entitled to SIBS, Section 408.142 provides that an employee continues to be entitled to SIBS after the first compensable quarter if the employee: (1) has earned less than 80% of the average weekly wage (AWW) as a direct result of the impairment, and (2) had made a good faith effort to obtain employment commensurate with his or her ability to work. See also Tex. W.C. Comm'n, Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 130.104 (Rule 130.104). Pursuant to Rule 130.102.(b), the quarterly entitlement to SIBS is determined prospectively and depends on whether the employee meets the criteria during the prior quarter or "filing period." Under Rule 130.101, "filing period" is defined as "[a] period of at least 90 days during which the employee's actual and offered wages, if any, are reviewed to determine entitlement to, and amount of [SIBS]." The employee has the burden of proving entitlement to SIBS for any quarter claimed. Texas Workers' Compensation Commission Appeal No. 941490, decided December 19, 1994. Documentary evidence indicates that the filing period for the fourth compensable quarter was from October 20, 1995, through January 18, 1996. It is undisputed that claimant worked through November 4, 1995. After November 4, claimant's treating doctors took claimant off work (and in fact he was hospitalized for a portion of that time) until after the end of the filing period. The hearing officer determined that "Claimant was not obligated to seek employment since he had no ability to work" and that the "Claimant's inability to work was due to his compensable injury." (The hearing officer also determined that carrier was entitled to a credit for the salary earned by claimant, during the "qualifying" period, but as this is not an appealed issue, we will not address it further).

As noted previously in this opinion, carrier first argues that claimant's depression is not related to the injury, and in the alternative argues that even assuming the depression is related to the injury, claimant's unemployability, during the filing period, was not "the direct result of claimant's impairment." Carrier cites the IR given to claimant and points out that the impairment is based solely on the compensable back injury. Carrier contends that the "depression is not a part of the impairment that the claimant has sustained as a result of this injury [and] it cannot be the basis upon which to entitle [claimant] to SIBS." Carrier cites Texas Employers Insurance Association v. Wilson, 522 S.W.2d, 192, 195 (Texas 1975) and Texas Workers' Compensation Commission Appeal No. 94591, decided June 22, 1994. We note that those cases involve extent of injury and do not deal with whether a subsequent mental condition arising from the compensable injury can be basis for SIBS, based on a total inability to work due to the mental condition, as opposed to the rated impairment from the original compensable injury.

Carrier, in its appeal, suggests that the hearing officer is linking claimant's inability to work with his injury "as opposed to his impairment." Both in his discussion and in Finding of Fact No. 10, the hearing officer states that claimants's "inability to work was due to his compensable injury." Section 408.142(a)(1) provides that to be entitled to SIBS, the employee must "(1) [have] an impairment rating of 15 percent . . . from the compensable injury; (2) has not returned to work or has returned to work earning less than 80 percent [of his preinjury wage] as a direct result of the employee's impairment." (Emphasis added). It is not the compensable injury that determines eligibility for SIBS, but the employee's 15% or more impairment. Consequently the inability to work must be from the impairment, not just the compensable injury, which may in some circumstances be broader than the impairment.

In Texas Workers' Compensation Commission Appeal No. 960451, decided April 8, 1996, this appeals judge stated that "Entitlement to SIBS is based on the rated impairment of the compensable injury" giving as a reason "that to hold otherwise would lead to endless litigation on each quarter of SIBS were a claimant allowed to allege new and different sequela from the original injury for each quarter." In Texas Workers' Compensation Appeal No. 960541, decided May 1, 1996, the chief appeals judge cited Appeal No. 960451, supra, stating:

In Appeal No. 960451, supra, we stated that the entitlement to SIBS is based on the rate of impairment of the compensable injury. In that case the compensable injury was a back injury and claimant argued that a psychiatric condition was related to his injury and consequently he could not work at all. We affirm the disallowance of SIBS. That case supports our reversal here on the direct result requirement for qualifying for SIBS in the quarters in issue.

Those cases were both cited, and distinguished, in Texas Workers' Compensation Appeal No. 960810, decided June 10, 1996, which stated:

We are more troubled, however, by the finding that the claimant's unemployment "was a direct result of his impairment." Finding of Fact No. 9. As we observed in Texas Workers' Compensation Commission Appeal No. 93630, decided September 9, 1993, this is the second and independent part of a two-part test to establish entitlement to SIBS. We have also pointed out that "direct result" may be established with medical documentation of the lasting effects of a serious injury and no ability to perform the type of work at the job where the injury occurred. See Texas Workers' Compensation Commission Appeal No. 93559, decided August 20, 1993. Our concern in this case is that Dr. W diagnosed and gave an IR only to a cervical injury and that the entire 20% IR was for abnormal cervical range of motion.

* * * *

Contrary to the suggestion in Judge Stephens' concurrence in this case, we find ample Appeals Panel precedent for the proposition that entitlement to SIBS must be based on the rated impairment from a compensable injury. See Texas Workers' Compensation Commission Appeal No. 960541, decided May 1, 1995; Texas Workers' Compensation Commission Appeal No. 960451, decided April 8, 1996. Under these circumstances, we conclude that hearing officer's finding of fact that the claimant's unemployment is the direct result of his impairment is against the great weight and preponderance on the evidence.

Judge Stephens in her concurring opinion stated:

However, I do not agree that a claimant may not obtain SIBS if he cannot work at all due to impairment that is not rated if the impairment is clearly from the compensable injury. . . . Section 408.142(a)(2) speaks of "impairment," not rated impairment.

* * * *

Judge Ernst cites two cases for the proposition that "impairment" means "rated impairment": Texas Workers' Compensation Commission Appeal No. 960541, decided May 1, 1995 and Texas Workers' Compensation Commission Appeal No. 960451, decided April 8, 1996. These cases are distinguishable. Neither cited cases involves an unrated part of an injury that has been held to be part of the compensable injury. In fact, both cases emphasize that very distinguishing fact. The statement in Appeal No. 960451 that "entitlement to SIBS is based on the rated impairment," was made, of course, regarding the facts of that case. I believe that statement is too broad and I do not agree with it for the reasons stated above.

Section 408.142(a)(1) speaks in terms of eligibility for SIBS being based on "an [IR] of 15 percent or more . . . from the compensable injury." The following section, Section 408.142(a)(2) requires the unemployability/underemployability to be "a direct result of the employee's impairment." I believe that these sections must be read together rather than separately and completely independent from each other. Section 408.142(a)(1) requires an IR (i.e. a rated impairment) of more than 15% and while (a)(2) does not mention a "rated impairment," in my opinion, the impairment in that subsection refers to the IR (rated impairment) in (a)(1).

Consequently, based on the consensus of opinion in Appeal Nos. 960451, 960541, and 960810, we reverse the hearing officer's decision on the entitlement to SIBS in that, clearly, the rated impairment was the back injury and that claimant's unemployability/ underemployability eligibility for SIBS must be based on the rated back injury rather than the mental condition. In this case, clearly, the unemployability/underemployability was due to the depression. We render a new decision that claimant is not entitled to SIBS for the fourth compensable quarter. We do note that our affirmance that the subsequent depression and mental condition was based on the compensable injury establishes an entitlement for lifetime medical benefits due to the entire injury. Section 408.021.

Thomas A. Knapp
Appeals Judge

CONCUR:

Philip F. O'Neill
Appeals Judge

CONCUR IN THE RESULT:

Robert W. Potts
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 24, 1996. The issues at the CCH were: 1. whether the respondent/cross-appellant (carrier herein) waived its right to contest the compensability of the reflex sympathetic dystrophy (RSD) and psychological condition of the appellant/cross-respondent (claimant herein) by not contesting compensability within 60 days of being notified of these conditions; 2. whether the claimant's RSD and psychological conditions resulted from the compensable injury sustained on or about (prior date of injury); 3. whether the claimant was entitled to supplemental income benefits (SIBS) for the seventh compensable quarter; and 4. what was the claimant's average weekly wage (AWW). The hearing officer found that the carrier had waived its right to contest the compensability of the of the claimant's psychological condition, but not her RSD because the carrier had never been clearly notified that the claimant suffered RSD or that such condition resulted from the compensable injury. The hearing officer also ruled that the claimant's psychological condition, including her major depression, was the result of her compensable injury, but, to the extent that she may suffer from it, RSD was not. The hearing officer concluded that the claimant was entitled to SIBS for the seventh compensable quarter and that her AWW was $374.01. The claimant appeals the determinations of the hearing officer concerning RSD, arguing that the evidence did not support the hearing officer's determinations that the claimant did not establish that she suffered from RSD and that the carrier did not waive its right to contest the compensability of RSD because it had not received notice that the claimant suffered from RSD, or that any such condition was the result of the compensable injury. The carrier responds that the evidence supports the determinations of the hearing officer regarding RSD. The carrier appeals the hearing officer's findings that the claimant's psychological condition was related to her compensable injury and that it had waived the right to contest the compensability of the psychological injury. The carrier also challenged several findings of fact concerning the claimant's eligibility for SIBS as well as the conclusion of the hearing officer that the claimant was entitled to SIBS for the seventh compensable quarter. The claimant responded that we should affirm all issues other than those dealing with RSD. There was no appeal regarding the AWW issue.

DECISION

Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.

The claimant testified that she injured her back on (prior date of injury), when she fell at work. The claimant testified that she underwent conservative treatment with several doctors before having a two-level lumbar hemilaminectomy in April 1993. This surgery was performed by Dr. C, a neurosurgeon who was still the claimant's treating doctor at the time of the CCH. The claimant testified after her surgery she developed pain and numbness in the lower right extremity. Several treatment modalities, including a spinal cord stimulator, have been tried in an attempt to relieve this lower extremity discomfort, but none has proven successful. In October 1994 Dr. C diagnosed her with depression and referred her for chronic pain counseling to Dr. G, Ph.D., a psychologist.

By October 1994 Dr. C noted that the claimant was unable to work, pending some resolution of her pain. Dr. C referred the claimant to Dr. P, a pain management specialist, who noted her severe depression and, in turn, referred her to Dr. N, a psychiatrist. In a September 27, 1995, report Dr. N stated that the claimant suffers from major depression resulting from the chronic pain from her injury. In a December 27, 1995, report Dr. N indicated that the claimant is being treated for depression, chronic pain and RSD.

The claimant testified that she did not believe she was able to work at all during the qualifying period for the seventh compensable quarter for SIBS. She testified that she did mail out a number of applications for work because the adjuster had told her she must apply for work to qualify for SIBS.

The first issue is whether the carrier waived its right to contest the claimant's psychological and RSD conditions by failing to contest compensability of these conditions within 60 days of being notified of them. It is undisputed that the carrier never filed a Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21) disputing either of these conditions. The carrier contends that it had no obligation to dispute them because it was never notified that they were related to the claimant's compensable injury. The hearing officer found that this was true in regard to RSD. The claimant testified that her symptoms of RSD arose after her surgery and she believed that they were related to her compensable condition. While Dr. C and Dr. N mentioned RSD after her surgery, neither ever states that she developed RSD as a result of either the compensable injury or her surgery.^[1] The hearing officer found that the carrier did not have an obligation to contest the compensability of RSD. On the other hand, medical reports from several doctors, particularly Dr. N, relate the claimant's depression to the effects of pain from her compensable injury. The hearing officer found that, since the carrier did not dispute the compensability of the psychological condition within 60 days of its receipt of these reports, it waived its right to do so.

Whether or not there was sufficient evidence of causality to put the carrier on notice, as to whether either the psychological or RSD condition was related to the claimant's compensable injury, is a factual determination. Section 410.165(a) provides that the contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals level body is not a fact finder, and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer's decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

Applying this standard of review, there is sufficient evidence to support the findings of the hearing officer regarding waiver. The carrier received medical reports clearly linking the claimant's psychological condition to her injury. On the other hand, while RSD is certainly mentioned in the claimant's medical reports there is no evidence relating it back to the claimant's original injury or treatment thereof.

This also has bearing on the second issue which is whether the claimant's psychological condition or RSD was related to her compensable injury. The hearing officer found that the claimant's psychological condition was, but her RSD was not. We have previously held that the question of extent of an injury is a question of fact for the hearing officer. Texas Workers' Compensation Commission Appeal No. 93613, decided August 24, 1993. Again, just as in the first issue, there is sufficient evidence to support the findings of the hearing officer in that there is medical evidence clearly linking the claimant's psychological condition, but not her RSD, to her compensable injury.

The final appealed issue deals with the claimant's eligibility for SIBS. Section 408.142(a) outlines the requirements for SIBS eligibility as follows:

An employee is entitled to [SIBS] if on the expiration of the impairment income benefit period computed under Section 408.121(a)(1) the employee:

(1)has an impairment rating of 15 percent or more as determined by this subtitle from the compensable injury;

(2)has not returned to work or has returned to work earning less than 80 percent of the employee's average weekly wage as a direct result of the employee's impairment;

(3)has not elected to commute a portion of the impairment income benefit under Section 408.128; and

(4)has attempted in good faith to obtain employment commensurate with the employee's ability to work.

The fact that the claimant met the first and third of these requirements was established by stipulation. This case revolved around whether the claimant met the second and fourth of these requirements. We have previously held that both the question of whether the claimant made a good faith job search and whether the claimant's unemployment was a direct result of his impairment are questions of fact. Texas Workers' Compensation Commission Appeal No. 94150, decided March 22, 1994; Texas Workers' Compensation Commission Appeal No. 94533, decided June 14, 1994.

In regard to good faith job search, the hearing officer found the claimant was unable to work at all, due to her compensable injury, during the filing period for the seventh compensable quarter. We have said previously that if a claimant is unable to work at all, a job search commensurate with the claimant's ability to work can be no search at all. Texas Workers' Compensation Commission Appeal No. 94398, decided May 19, 1994; Texas Workers' Compensation Commission Appeal No. 94512, decided June 9, 1994. The carrier argues that Dr. C released the claimant to return to work as earlier as April 1994. While this is true, by October 1994 Dr. C noted that the claimant could not work and was totally disabled, pending some resolution of her pain. In a March 1995 report, Dr. C noted that the claimant could only walk from her bedroom to her kitchen. Also, Dr. N's report of September 1995 shows that by the time of the filing period the claimant is suffering from severe depression that is related to her compensable injury and prevents her from working. Thus the hearing officer's factual finding that the claimant is unable to work at all is supported by the medical evidence, as well as the testimony of the claimant. Further, there is sufficient evidence to support the hearing officer's finding that the claimant has not returned to employment as a direct result of her injury in the medical evidence and her testimony that she is unable to work due to her compensable injury, including her psychological condition.

The decision and order of the hearing officer are affirmed.

Gary L. Kilgore
Appeals Judge

CONCUR:

Joe Sebesta
Appeals Judge

Judy L. Stephens
Appeals Judge

1.     In fact, there is some question from the medical reports as to whether the claimant's doctors actually diagnosed her with RSD or whether they merely suspect she might have RSD.

   ↑

On December 28, 1995, a contested case hearing (CCH) was held. The hearing was held under the provisions of the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issue at the CCH was whether the appellant/cross-respondent (claimant) is entitled to supplemental income benefits (SIBS) for the fifth compensable quarter. The hearing officer held that the claimant is not entitled to SIBS for the fifth quarter. The claimant appeals the hearing officer's determination that his unemployment is not as a direct result of his impairment. The respondent (carrier) filed a response to the claimant's appeal requesting affirmance of the hearing officer's decision that the claimant is not entitled to SIBS for the fifth quarter. In the response, the carrier states that it contests the hearing officer's findings that the claimant made a good faith effort to obtain employment commensurate with his ability to work during the filing period for the fifth quarter. According to records of the Texas Workers' Compensation Commission (Commission) the carrier's Austin representative received the hearing officer's decision on January 16, 1996. Since the carrier did not file its response with the Commission until February 8, 1995, the response cannot be considered as a timely filed appeal since it was not filed within 15 days after the date of the receipt of the hearing officer's decision. See Section 410.202(a). Thus, we do not consider the carrier's appeal of the good faith findings. Responsive matters in the carrier's response, other than the appeal of the good faith findings, will be considered as the response was filed within 15 days of receipt of the claimant's appeal. See Section 410.202(b).

DECISION

Reversed and remanded.

The parties stipulated that the claimant suffered a compensable injury on _____; that he reached maximum medical improvement (MMI) with a 15% impairment rating on November 5, 1993; that he did not commute any of his impairment income benefits; that the filing period for the fifth quarter was from June 16, 1995, to September 14, 1995 (hereafter called the filing period); that the fifth quarter was from September 15, 1995, to December 14, 1995; that the carrier had paid SIBS for all previous quarters; that the claimant was released to return to light-duty work by his treating doctor, Dr. T, on December 20, 1994; and that the claimant was unemployed during the filing period.

The claimant is 30 years of age. He worked for (employer), as an auto mechanic for nine years. He testified that he injured his back on _____, when he lifted an engine cover from a motor home, that he was last employed by the employer in October 1992, and that he had back surgery in July 1993. On December 20, 1994, Dr. T wrote that the claimant could perform light-duty work, with no lifting over 20 pounds and avoidance of repetitive bending, pushing, or pulling. In addition, Dr. T wrote that the claimant could stand for a total of four to six hours per day with a maximum of four hours at one time, sit for a total of two to four hours per day with a maximum of two hours at one time, and walk a total of four to six hours a day with a maximum of four hours at one time. The claimant testified that he continues to be under the work restrictions set out by Dr. T in December 1994 and that he goes to Dr. T once every three months. The claimant further testified that his work restrictions prevent him from performing his old job as an auto mechanic.

The claimant testified that in September 1995, and within the filing period, he applied for a cashier's job at a building supply store, a hardware store, and a convenience store (he gave the names of the stores); that the applications for those jobs inquired about disability; and that he wrote on the applications that he had had back surgery. He said he was told at the building supply store and at the hardware store that they were hiring, but later said he didn't know if they were hiring. He said that during the filing period he also looked for work as an orderly at two hospitals. He said he did not apply for work at the hospitals because they were not hiring and because he was told that orderly work required lifting. He said he asked about other types of jobs at the hospitals but no jobs were available. In addition, the claimant testified that he went to the employer during the filing period and asked about a cashier's job but the cashier's job was already filled. He said he told the employer about his work restrictions. The claimant said he was not hired at any of the places he applied. He testified that he doesn't know why he wasn't hired at the places that were hiring. He also testified that during the filing period he attended college for six hours per week during the first summer session and that he did not attend college the second summer session. He indicated that during the fall semester of 1995 he attended college for 12 hours per week.

In a recorded statement dated September 22, 1995, the manager of the convenience store said that it was possible that the claimant had applied for a job there but that the store had not been hiring recently. In another recorded statement dated November 13, 1995, a secretary at the hardware store stated that the store was hiring in September 1995, that the claimant had applied for a job at the store, and that she did not know why the claimant wasn't hired. A salesman at the building supply store stated in a recorded statement that the store was hiring in September 1995, that the store received a lot of applications, and that there wasn't any way to verify whether the claimant had applied for a job. A person the claimant identified as an accountant at the employer stated in a recorded statement dated November 13, 1995, that the claimant had asked about his auto mechanic job "sometime back," but not within "the last couple of months"; that the claimant only had a light-duty release; and that the employer did not have any light-duty work.

The criteria for SIBS entitlement are set out in Section 408.142(a). Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE 130.104(a) (Rule 130.104(a)) provides that an injured employee initially determined by the Commission to be entitled to SIBS will continue to be entitled to SIBS for subsequent compensable quarters if the employee, during each filing period: (1) has been unemployed, or underemployed as defined by Rule 130.101, as a direct result of the impairment from the compensable injury; and (2) has made good faith efforts to obtain employment commensurate with the employee's ability to work.

The hearing officer found that the claimant "sought employment commensurate with his abilities, with six employers during the qualifying period [filing period] for the fifth compensable quarter," and that the claimant "made a good faith effort to obtain employment during the qualifying period [filing period]." These findings were appealed by the carrier in its response but, as we have previously determined, the response was not timely filed as an appeal. Thus, the findings on the good faith criterion stand unappealed and are final. With respect to the direct result criterion, the hearing officer made one finding which was "claimant's unemployment during the qualifying period was not a direct result of his impairment from the compensable injury." On the basis of that finding, the hearing officer concluded that the claimant is not entitled to SIBS for the fifth compensable quarter.

The claimant has the burden to prove his or her entitlement to SIBS. See Texas Workers' Compensation Commission Appeal No. 941490, decided December 19, 1994. In her discussion of the evidence the hearing officer cites Texas Workers' Compensation Commission Appeal No. 93630, decided September 9, 1993, and states that the claimant did not adequately address his impairment and its effects on his ability to obtain employment. In Appeal No. 93630, supra, we affirmed a hearing officer's decision that the employee's unemployment was not as a direct result of her impairment from her compensable injury. However, the facts of that case are clearly distinguishable from the facts of the instant case. In Appeal No. 93630, supra, the claimant did not offer any medical evidence regarding the severity of her injury or any evidence concerning any work restrictions from a doctor. In addition, the employee testified that she was capable of doing any kind of job with the only limitation being that she would have pain after three or four hours of standing or sitting, but that with alternating standing and sitting positions she could handle any job. The only mention of work restrictions was in the benefit review conference report which indicated that the employee had achieved MMI without restrictions. Furthermore, there was no evidence as to why the employee "did not return or seek to return to her position with the preinjury employer. . . ."

In Texas Workers' Compensation Commission Appeal No. 93559, decided August 20, 1993, we reversed a hearing officer's determination on the good faith criterion and remanded; however, in upholding the hearing officer's determination that the employee's underemployment was as a direct result of his impairment we stated that:

We agree with the implicit determination (not specifically set out as a finding but necessary for the result reached) of the hearing officer that the evidence established that the claimant's unemployment or underemployment was a direct result of the impairment from the compensable injury. All of the medical evidence tends to support the fact that the claimant suffered a serious injury with lasting effects and that he could not reasonably perform the type of work that he was doing at the time of the injury. Indeed, there has never been a question of various limitations being imposed on the claimant. And, the claimant's testimony is consistent with this as is the report of Dr. W. There is sufficient evidence of a direct linkage between what the claimant was earning at the time of his injury and the subsequent reduced wage level resulting from that injury.

In a recent case, Texas Workers' Compensation Commission Appeal No. 952082, decided January 10, 1996, we reversed a hearing officer's determination that the employee's unemployment was not as a direct result of the impairment from the compensable injury and remanded. The hearing officer's finding that the employee had made a good faith effort to obtain employment commensurate with his ability to work was not timely appealed by the carrier. In remanding on the direct result criterion, we cited Texas Workers' Compensation Commission Appeal No. 950849, decided July 7, 1995. In that case we stated:

The requirement that a claimant make a good faith search for employment, commensurate with the ability to work, and that his unemployment or underemployment be a "direct result" of the impairment, are two different criteria of eligibility, set out in Sections 408.142(a)(4) and 408.142(a)(3). We have previously stated, however, that application of these criteria should not lead to incongruous results. See Texas Workers' Compensation Commission Appeal No. 94533, decided June 14, 1994. We do not believe that the "direct result" criteria was merely an alternative way to evaluate the job search. Although the Appeals Panel has quoted Sen. John Montford's observation that economic conditions, rather than impairment, are an example of something other than the injury that could be the direct cause of unemployment, we believe this refers to situations where the general economic conditions in the area impact all workers, rather than the fact that some of the prospective employers contacted by one person had no current openings.

We also noted in Appeal No. 952082, supra, that "direct result" does not require a claimant to prove that his impairment is the sole cause of unemployment or underemployment.

In the instant case, the hearing officer states in her discussion of the evidence on the direct result criterion that "speculation about potential employers motives is not enough." It appears that the hearing officer may not have evaluated the evidence the claimant presented on the direct result criterion in light of applicable Appeals Panel decisions such as Appeal No. 93559, Appeal No. 952082, Appeal No. 950849, supra, and cases cited therein. We reverse the hearing officer's decision and remand the case to the hearing officer for further consideration and development of the evidence on the direct result criterion for SIBS and for further findings of fact and conclusions of law on the

direct result criterion. The findings regarding a good faith job search are binding as they were not timely appealed.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers' Compensation Commission's division of hearings pursuant to Section 410.202. See Texas Workers' Compensation Appeal No. 92642, decided January 20, 1993.

Robert W. Potts
Appeals Judge

CONCUR:

Stark O. Sanders, Jr.
Chief Appeals Judge

CONCURRING OPINION:

I concur in all that is written in the majority decision and would add the following observation. SIBS also compensates for "underemployment." It appears to me that where an injured employee cannot, because of his injury, return to his previous type of employment, and the types of jobs he is physically restricted to search for would constitute "underemployment" if obtained (fewer hours, less pay), then the status of unemployment during the good faith job search process is no less a direct result of the impairment than his or her underemployment would be.

Susan M. Kelley
Appeals Judge

Following a contested case hearing held on December 12, 1995, pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, ________________, resolved the sole disputed issue by determining that the respondent (claimant) was entitled to supplemental income benefits (SIBS) for the second compensable quarter, namely, September 22 through December 21, 1995. (All dates are in 1995 unless otherwise stated.) The appellant (carrier) asserts on appeal that the evidence is insufficient to establish the statutory requirements that claimant's unemployment was a direct result of his impairment and that he made a good faith attempt to obtain employment commensurate with his ability to work. The carrier further asserts that there is no evidence to support a finding that claimant was unable to work during the filing period due to his impairment. No response was filed by the claimant.

DECISION

Determining that the decision of the hearing officer is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, we affirm. We note that different inferences might reasonably be drawn from the evidence, but this is not a sufficient basis to reverse a decision where there is some probative evidence. Texas Workers' Compensation Commission Appeal No. 92308, decided August 20, 1992.

The parties stipulated that on ______________, claimant sustained a compensable injury to his lower back and had resulting disability, that he reached maximum medical improvement on August 12, 1994, and had a 15% impairment rating (IR), that he did not elect to commute any portion of the impairment income benefits (IIBS) he received, that the first compensable quarter for SIBS began on June 23rd and the second quarter on September 22nd, and that during the filing period claimant was not employed and did not earn any wages. Notwithstanding that three findings of fact reference the filing period, the dates of the filing period were, inexplicably, neither stipulated to nor otherwise found. Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 130.101 (Rule 130.101) defines filing period as a period of at least 90 days during which the employee's wages, if any, are reviewed to determine entitlement to SIBS; Rule 130.102(b) provides that entitlement to SIBS is determined prospectively for each potentially compensable quarter based on criteria met by the employee during the prior filing period. Accordingly, the 90-day period preceding September 22nd, namely, June 24th through September 21st comprises the filing period for the second compensable quarter.

Claimant introduced a Statement of Employment Status (TWCC-52) which he signed on September 5, 1995, which reflected that during the preceding 90 days he applied for "construction" employment with MR, RG, and JR who, apparently, were contractors, and that he was not offered a position. Claimant was the sole witness. He testified through a translator and his testimony was sparse and inconsistent. He said that when injured he was doing construction work involving cement, that his previous jobs had also been in construction and before that he had worked in a nursery, and that during the filing period he was unable to return to construction work because of back pain from the plate in his back and pain and cramping in his leg from the nerve. According to claimant, Dr. G (Dr. G), his treating doctor, told him that he had "fixed" claimant's back but that the nerve down his leg would not get well. Claimant further testified that when he applied to the businesses listed on the TWCC-52, he was looking for any type of work that he could do, that he did not think he could do the type of work he was doing when injured, and that no light work such as driving or carrying materials was available. He further stated that Dr. G never discussed his job restrictions but did, apparently during his visit on July 12th, advise him he should look for lighter work. Claimant further testified that in addition to the three applications listed on the TWCC-52 he made other (unspecified) applications for lighter work, including a nursery. There was no development of the evidence concerning these other attempts to find employment.

Dr. G wrote on July 6, 1994, that claimant was approximately one year post-fusion at L5-S1 and that he continues to have numbness and slight weakness of the left foot, limited flexion and extension of his back, and a persistent S1 radiculopathy. Dr. G further stated: "Again, I have advised the patient to consider perhaps other lines of work in a lighter duty capacity which I do not believe his present employer has." Dr. G wrote on July 12th that claimant was two years post-fusion at L5-S1, that he continued to be symptomatic with numbness in the left leg, and that he was "trying to get employment at this time."

Section 408.142(a) provides that an employee is entitled to SIBS if on the expiration of the IIBS period the employee: (1) has an IR of 15% or more; (2) has not returned to work or has earned less than 80% of the average weekly wage "as a direct result of the employee's impairment"; (3) has not elected to commute a portion of the IIBS; and (4) "has attempted in good faith to obtain employment commensurate with the employee's ability to work." And see Rules 130.101 through 130.110. Section 408.143 provides that after the initial determination of SIBS, an employee must, on a quarterly basis, continue to meet the "direct result" and "good faith" criteria. Whether claimant met these statutory criteria for SIBS for the second quarter were fact questions for the hearing officer's resolution. These criteria are different. Texas Workers' Compensation Commission Appeal No. 950849, decided July 7, 1995. The Appeals Panel discussed the meaning of the "good faith" attempt criterion in Texas Workers' Compensation Commission Appeal No. 93181, decided April 19, 1993. And see Texas Workers' Compensation Commission Appeal No. 941160, decided October 12, 1994. Regarding the "direct result" criteria, the Appeals Panel has said that an injured employee must show that the unemployment is due to the impairment and not to such things as economic factors. Texas Workers' Compensation Commission Appeal No. 94335, decided May 6, 1994. The Appeals Panel has also recognized that an injured employee is not required to offer direct evidence that job refusals were due to physical limitations. Texas Workers' Compensation Commission Appeal No. 93630, decided September 9, 1993. In Texas Workers' Compensation Commission Appeal No. 93559, decided August 20, 1993, the Appeals Panel indicated that a finding of "direct result" was sufficiently supported by evidence that the employee sustained a serious injury with lasting effects and that during the filing period he could not reasonably perform the type of work he was doing at the time of the injury. And see Texas Workers' Compensation Commission Appeal No. 94533, decided June 14, 1994; Texas Workers' Compensation Commission Appeal No. 950376, decided April 26, 1995; Texas Workers' Compensation Commission Appeal No. 950771, decided June 29, 1995.

The hearing officer found that claimant was "unable to work during the filing period for the second compensable quarter due to his impairment" and that he in good faith attempted to obtain employment commensurate with his ability to work during the filing period. Though it does not advert to the statutory language, we read the first finding as addressing the "direct result" criterion and not as a finding that claimant had no ability to work whatsoever so that, perforce, he had no obligation to look for work. We are satisfied that the evidence, though minimal and not well developed in the claimant's testimony or in the medical evidence, is sufficient to support the challenged findings. The hearing officer could credit the unrefuted evidence that during the filing period claimant sought any kind of light duty work from three contractors as well as work at a nursery as a good faith attempt to obtain employment commensurate with his ability. The evidence was particularly minimal respecting the "direct result" criterion. Appeal No. 94533, supra. And see Texas Workers' Compensation Commission Appeal No. 941649, decided January 26, 1995, where the Appeals Panel remanded for further development of the medical evidence concerning the employee's ability to work. The hearing officer could further consider the unrefuted evidence of claimant's residual pain, numbness and persistent radiculopathy following his lumbar spine fusion and his inability during the filing period to return to heavy manual labor as directly resulting in his unemployment during the filing period. In considering questions of factual sufficiency, we consider and weigh all the evidence and only set aside factual determinations when they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Texas Workers' Compensation Commission Appeal No. 91129, decided February 10, 1992; Texas Workers' Compensation Commission Appeal No. 92046, decided March 23, 1992. See also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). We do not find them to be so in this case.

The decision and order of the hearing officer are affirmed.

Philip F. O'Neill
Appeals Judge

CONCUR:

Tommy W. Lueders
Appeals Judge

CONCUR IN THE RESULTS:

Robert W. Potts
Appeals Judge

.

This appeal is brought pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. §401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 14, 1995. She (hearing officer) determined that the respondent (claimant herein) was entitled to supplemental income benefits (SIBS) for the eighth compensable quarter. The appellant (carrier herein) appeals, arguing that the hearing officer committed prejudicial error in an evidentiary ruling and that her decision is otherwise against the great weight and preponderance of the evidence. The appeals file contains no response from the claimant.

DECISION

Reversed and rendered.

Section 408.143 provides that an employee continues to be entitled to SIBS after the first compensable quarter if the employee: (1) has not returned to work or has earned less than 80% of the average weekly wage (AWW) as a direct result of the impairment and (2) has made a good faith effort to obtain employment commensurate with his or her ability to work. Pursuant to Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE 130.102(b) (Rule 130.102(b)), the quarterly entitlement to SIBS is determined prospectively and depends on whether the employee meets the criteria during the prior quarter or "filing period." Under Rule 130.101, "filing period" is defined as "[a] period of at least 90 days during which the employee's actual and offered wages, if any, are reviewed to determine entitlement to, and amount of, [SIBS]." The employee has the burden of proving entitlement to SIBS for any quarter claimed. Texas Workers' Compensation Commission Appeal No. 941490, decided December 19, 1994. The relevant filing period for the eighth compensable quarter was from June 23, 1995, through September 20, 1995. On_____, the claimant sustained a compensable injury. He reached maximum medical improvement (MMI) on December 3, 1992, with a 19% whole body impairment rating (IR).

In Texas Workers' Compensation Commission Appeal No. 951829, decided December 15, 1995, the Appeals Panel reversed the decision of the same hearing officer which awarded the claimant SIBS for the seventh compensable quarter and rendered a decision that the claimant was not entitled to seventh quarter SIBS. In doing so, it found the hearing officer's determination that the claimant was unable to work during the filing period for the seventh quarter to be against the great weight and preponderance of the evidence. That evidence, with additions discussed below, was essentially the same evidence introduced at the CCH to establish the claimant's entitlement to eighth quarter SIBS and from which the hearing officer again found that the claimant was unable to work during the filing period for the eighth quarter SIBS. For this reason, we need only supplement the discussion of the facts in Appeal No. 951829 as necessary for purposes of this decision.

We first address the challenged evidentiary ruling of the hearing officer. The claimant admitted at the CCH that he received certain interrogatories from the carrier on October 25, 1995. He said he consulted "a friend" about them and was told they were "not important." And so, he simply ignored them. At the same time, he conceded he signed the response to interrogatories in the prior, seventh quarter SIBS case and returned those interrogatories, but denied he knew what the answers were since someone else prepared them. The hearing officer found that the claimant did not have good cause for not timely answering the interrogatories and the claimant has not appealed this determination. The hearing officer, nonetheless, allowed the claimant to testify about matters not covered in the interrogatories and about matters contained in documents which had been timely exchanged and which were in evidence. (These consisted essentially of medical reports and a Statement of Employment Status (TWCC-52) which reflected no efforts to obtain employment during the filing period.)

Section 410.160 requires the exchange of documentary information and the identity and location of persons with knowledge of the relevant facts. Section 410.158 provides for additional discovery by way of depositions and interrogatories. Interrogatories "may not seek information that may readily be derived from documentary evidence" and answers to interrogatories "need not duplicate information that may readily be derived from documentary evidence . . . . " Section 410.158(b). A party which fails to provide the required answers to interrogatories "may not introduce the evidence at any subsequent proceeding" absent a determination of good cause for the failure. Section 410.161. Rule 142.13 further provides for the orderly progression of discovery. Documents are to be exchanged before interrogatories and "[a]dditional discovery shall be limited to evidence not exchanged, or not readily derived from evidence exchanged." Rule 142.13(b). In Texas Workers' Compensation Commission Appeal No. 951136, decided August 28, 1995, the Appeals Panel wrote that "interrogatories must be directed at information not exchanged or disclosed," and Texas Workers' Compensation Commission Appeal No. 93629, decided September 10, 1993, stated that "the failure to answer interrogatories could not be used to exclude evidence that was required to be exchanged." Finally, in Texas Workers' Compensation Commission Appeal No. 94143, decided March 21, 1994, we noted that "[n]either the 1989 Act nor Texas Workers' Compensation Commission rules provide a specific remedy against a party who fails to comply with discovery . . . except information not exchanged will not be admitted because of such failure."

In its appeal, the carrier asserts that the "proper remedy for failure to answer interrogatories is to exclude evidence not provided in answers to interrogatories," citing Texas Workers' Compensation Commission Appeal No. 92309, decided August 19, 1992. To the extent that the carrier is seeking to exclude broad subject areas from testimony just because these subjects were raised in an interrogatory, without regard to the limitations on the proper subject matter for interrogatories and provisions that answers to interrogatories need not simply duplicate information otherwise readily available, we disagree and do not believe that Appeal No. 92309 supports such a proposition. Because the interrogatories directed to the claimant dealt with such basic matters as his identity, the nature of the claimed injury and the physical effects of the injury, it was at best a fine distinction whether they properly addressed matters not already disclosed or exchanged. At worst, the nature of these interrogatories rendered a determination of what new information they sought, as distinguished from that already disclosed, nearly impossible. While we thus approve the hearing officer's finding of no good cause for the claimant's failure to answer the interrogatories and in no way condone the claimant's "cavalier" attitude, Texas Workers' Compensation Commission Appeal No. 931178 (Unpublished), decided February 8, 1994, toward those interrogatories, we find any error in not excluding all or part of the claimant's testimony harmless.^[1]

The carrier also appeals, as against the great weight and preponderance of the evidence, the following Findings of Fact and Conclusion of Law:

FINDINGS OF FACT

No. 7.Claimant was not released to return to any type of work by his treating doctor, [Dr. P], in the filing period for the eighth compensable quarter, and continued to receive treatment for his back and right shoulder injury during this filing period.

No. 8.Claimant did not have the ability to work in the filing period for the eighth compensable quarter, and his unemployment was a direct result of his impairment.

CONCLUSIONS OF LAW

No. 3.Claimant is entitled to [SIBS] for the eighth compensable quarter.

In Appeal No. 951829, supra, we discussed the concept that, for an employee who is unable to work at all, a good faith effort to obtain employment is no effort at all. We also stressed that a determination of no ability to work at all must be based on medical evidence or be so obvious as to be irrefutable. We also cautioned that the absence of a release from a treating doctor to return to full or light duty is not dispositive of the question of no ability to work. The evidence in Appeal No. 951829, supra, on the question of ability to work came exclusively from Dr. P and was virtually identical to the evidence in the case we now consider. The only exception deals with the condition of the claimant's shoulder. During the filing period for the seventh quarter SIBS, shoulder surgery was pending. On September 17, 1995, just three days before the end of the filing period for the eighth quarter, Dr. P performed subacromial decompression and right rotator cuff repair. However, none of Dr. P's additional medical reports concerning the shoulder mention in any way, directly or indirectly, the effect of the shoulder condition and operation on the claimant's inability to work at all for the remainder of the filing period. It was as if the effects were obvious or presumed. We are thus left with the same evidence to support the hearing officer's finding of no ability to work during the qualifying period for the eighth quarter that we found insufficient to support the correlative findings for the seventh quarter. For the same reasons articulated in Appeal No. 951829, supra, we find the hearing officer's determination that claimant had no ability to work during the filing period for the eighth quarter to be so against the great weight and preponderance of the evidence as to be manifestly unjust and clearly wrong. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The hearing officer also determined that the claimant's failure to return to work was the direct result of his impairment. In Appeal No. 951829, supra, we observed that there was no evidence that Dr. P regarded the claimant as having any impairment from his right shoulder. Indeed, the Report of Medical Evaluation (TWCC-69) of January 26, 1995, offered into evidence for both the seventh and eighth quarters, refers to the compensable injury by diagnosis code only and this code does not pertain to the upper extremity or shoulder. The 19% IR consists solely of a specific disorder of the lumbar spine and loss of range of motion of the lumbar spine. The claimant testified that he started feeling pain immediately after his injury on_____, and that it has been treated continually since. We have no reason to question this, but can only wonder why as late as January 1995, Dr. P had not assigned a rating to the shoulder. Arguably, had the claimant responded to the carrier's interrogatory that asked about the nature of his injury and persons with knowledge of the relevant facts, more information would have been produced about a rating for his shoulder. As stated above, the claimant had the burden to prove he was entitled to eighth quarter SIBS. He failed to present evidence that his unemployment was the direct result of a shoulder impairment. This was the only additional consideration for entitlement to SIBS for the eighth quarter beyond what was considered for the seventh quarter.

For the foregoing reasons, we reverse the decision of the hearing officer and render a new decision that the claimant is not entitled to SIBS for the eighth compensable quarter.

___________________

Alan C. Ernst
Appeals Judge

CONCUR:

Philip F. O'Neill
Appeals Judge

Thomas A. Knapp
Appeals Judge

1.     For example, the claimant testified that his only effort to find employment during the filing period was a vague inquiry of his former employer. His TWCC-52 reflected no employment contacts. The hearing officer clearly did not consider such actions in themselves to have constituted a good faith effort to obtain employment and, instead, found no efforts were required because the claimant was unable to work at all. Similarly, the carrier objected to the claimant even identifying himself. This subject was hardly in dispute or otherwise unknown to the carrier. See Section 410.158 and Rule 142.13.

   ↑

Following a contested case hearing held on August 16, 1995, pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer resolved the sole disputed issue by determining that the respondent (claimant) was entitled to supplemental income benefits (SIBS) for the ninth and tenth compensable quarters. The appellant (carrier) asserts on appeal that the evidence is insufficient to support findings that claimant's underemployment during the qualifying periods for these compensable quarters was a direct result of her impairment and that she made good faith efforts to seek employment commensurate with her ability to work. The carrier maintains, in essence, that the evidence established that claimant's underemployment was attributable to her hypertensive condition and to the death of her husband and not to her impairment, that she could return to her former workload level as an apartment complex manager if she controlled her hypertension and practiced stress management, and that she simply chose to be underemployed as a part-time bookkeeper. Claimant's response contends to the contrary and seeks our affirmance.

DECISION

Determining that the decision of the hearing officer is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, we affirm. We note that different inferences might reasonably be drawn from the evidence but this is not a sufficient basis to reverse a decision where there is some probative evidence sufficient to sustain a decision. Texas Workers' Compensation Commission Appeal No. 92308, decided August 20, 1992.

Section 408.142(a) provides that an employee is entitled to SIBS if on the expiration of the impairment income benefits (IIBS) period the employee has: (1) an impairment rating (IR) of 15% or more; (2) has not returned to work or has earned less than 80% of the average weekly wage (AWW) "as a direct result of the employee's impairment"; (3) has not elected to commute a portion of the IIBS; and (4) "has attempted in good faith to obtain employment commensurate with the employee's ability to work." This case involves continuing entitlement to SIBS. Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 130.104(a) (Rule 130.104(a)), which states the continuing entitlement criteria, provides that an injured employee initially determined to have been entitled to SIBS will continue to be entitled for subsequent quarters if during each filing period (the 90-day period preceding the compensable quarter) the employee (1) has been unemployed or underemployed "as a direct result of the impairment from the compensable injury" and (2) has "made good faith efforts to obtain employment commensurate with the employee's ability to work." See Also Section 408.143(a).

The parties stipulated that on or about ____________, claimant sustained a compensable injury; that she reached maximum medical improvement on August 19, 1991, (the hearing officer's decision misstated the date as August 21, 1991) with an impairment rating of 23%; that she has not commuted any of her IIBS; that the ninth compensable quarter began on February 21, 1995, and terminated on May 22, 1995; and that the tenth compensable quarter began on May 22, 1995, and terminated on August 21, 1995. No documentary evidence was introduced which reflected the nature and extent of the compensable injury or injuries resulting in the 23% IR.

Claimant testified that on ____________, while working as an apartment complex manager, she was walking with a prospective tenant to view an apartment when she slipped on a freshly painted curb and in struggling to keep from falling injured her neck, arms and back. She said she was later diagnosed with a herniated cervical disc. She further testified that the next morning, as she was sitting at her desk at work, she turned around towards her credenza and experienced sharp pain in her elbow; that the pain became so severe by the evening that her husband took her to an emergency room; and that she was later diagnosed with median nerve entrapment, which was surgically treated, and with bilateral carpal tunnel syndrome (CTS). She said she first saw her family doctor, Dr. L who referred her to Dr. H, an orthopedic surgeon; that after her surgery she underwent physical therapy and traction; that Dr. H told her she had a herniated cervical disc that was pinching a neck nerve but that nothing could be done about it; and that sometime later she began to receive chiropractic treatment from Dr. G but also remained under the care of Dr. H. No records of Dr. L were in evidence and only some massage prescriptions from Dr. H were in evidence.

Claimant further testified that she had worked in the apartment management field for nearly 20 years; that such work was physically demanding and involved being on call 24 hours a day; that she loved that work and did not find it stressful before her injury; that after her injury she returned to work in August 1991 and worked with her late husband as an apartment management team for about three years but restricted her duties to light office work while her husband did all the running around and more strenuous and physical activities; that her husband died in November 1993; that she was thereafter assigned to work at another of the employer's facilities where she had to work twice as hard for the same pay; that her duties were strenuous and stressful and involved long hours, that her workload was "unbelievable" and she became "sicker and sicker"; that in February 1994 she went to Dr. C who found her blood pressure highly elevated, prescribed medication, and advised her to seek less strenuous work; and that she thereafter resigned. Dr. C's records were not in evidence. She insisted that her resignation had nothing to do with her husband's death or her high blood pressure episode; however, she also testified that after the resignation her hypertension was quickly alleviated and she has not since had problems with hypertension. Claimant further stated that on March 1,1994, she commenced employment as a contract bookkeeper for a small company working 20 hours per week, that she was able to work at her own pace, which kept her symptoms "reduced," and that her doctor "agreed with" the work. Claimant said she continues to receive weekly massage therapy (prescribed by Dr. H) which is the only treatment that helps her; that she cannot work out because it "throws [her] neck out of place"; that she is all right so long as she avoids strenuous activities; and that she knows she could no longer perform the duties of an apartment manager because "its a 24 hours per day job" and her "neck gives out" and her "nerves are pinched," these being problems she did not have before her injury. She insisted she was not physically capable of full-time work. Claimant stated that she has been earning approximately $150.00 per week whereas her AWW before the injury was approximately $300.00 per week. There was no dispute that she earned less than 80% of her AWW throughout the qualifying periods.

In a July 27, 1995, report, Dr. G recounted claimant's effort to avoid a fall and in so doing experiencing "sudden jerking motions throughout the neck and upper back and suddenly felt a snapping sensation in the cervical region," and of her later experiencing "severe pain in the upper regions of the back and neck area, and that the pain radiated into the left arm." Dr. G noted that claimant was thereafter treated by Dr. H, diagnosed with bilateral CTS, and operated on for ulnar nerve release "but continued to suffer pain and discomfort in the left arm." He further reported that for the past two years claimant has had continued exacerbations of the pain patterns, also suffers "at times" from hypertension and headaches, and feels "as if her neck `goes out' and experiences pain as a result." He reported claimant as stating that if she limits herself to sedentary and light duty activities "her exacerbations" are controlled and she can go about her normal daily activities with comfort but that "the more stressful and active she becomes, the stronger and longer lasting are the exacerbations." Claimant testified in detail to the same effect. Dr. G then stated that, in his opinion, claimant "must limit herself to light-duty and sedentary methods of gainful employment in order to control any further exacerbations which are inevitable. . . . I also recommend that she continue with conservative management to aid in the control of her pain and discomfort and strongly stress that she modify her lifestyle."

In the July 13, 1995, report of his independent medical evaluation, Dr. M stated that claimant underwent a surgical release of the ulnar nerve entrapment in April 1991 (which he characterized as successful from a strictly neurologic viewpoint though claimant stated she had no relief of pain), that claimant also had a left carpal tunnel release, that she has some right CTS, that she has some cervical, thoracic and lumbar disc abnormalities which do not merit surgical treatment, and that she has since had conservative treatment. His diagnosis included posttraumatic ulnar and median nerve entrapments in the left arm, surgically treated without neurologic deficits, and "post-traumatic cervical, thoracic and lumbar sprains with severe myofascial discomforts which are exacerbated by increased psychologic stress or anything other than sedentary to light physical activities."

The carrier introduced a January 14, 1995, report which indicated that a vocational specialist had opined that claimant was "under-employed as a bookkeeper," that a labor market survey indicated claimant could obtain employment as an apartment manager earning more than twice her present wages, and that according to an "IME report of September 13, 1991," by Dr. DC, claimant could go back to work as an apartment complex manager. An April 12, 1995, report from Dr. DC stated claimant's diagnosis as cervical disc disease at two levels, a bulging disc at C6-7, cervical neuralgia at C6-7 and fibromyalgia. Referring to the diagnosis, Dr. DC stated that claimant "has reasons for cervical pain and radiculalgia" and that he recommended weight loss, swimming, low impact exercises, massage, and stress management. He felt that if claimant's blood pressure were controlled and if she had an adequate exercise program and stress management program, "she could do apartment management." The carrier also introduced a document which purported to reflect the opinion of a "physician advisor," Dr. W, that "short of carrying and climbing a ladder (if this is required) the claimant can perform the duties of an apartment manager." There was no indication that Dr. W had examined claimant nor did the document indicate the records that were reviewed, if any.

Claimant had the burden to prove by a preponderance of the evidence that she was entitled to SIBS for the ninth and tenth compensable quarters. Whether her underemployment during the qualifying periods for these quarters was the direct result of her impairment and whether she made a good faith attempt to obtain employment commensurate with her ability to work presented the hearing officer with questions of fact to resolve. It is the hearing officer who is the sole judge of the relevance, materiality, weight and credibility of the evidence (Section 410.165(a)) and it is the hearing officer who, as the fact finder, must resolve the conflicts and inconsistencies in the evidence, including the medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The hearing officer made factual findings that claimant worked during the qualifying periods for the ninth and tenth compensable quarters, that her treating doctor had "restricted her from returning to her pre-injury level of employment," that she made good faith efforts to seek employment commensurate with her ability to work, and that her underemployment during these qualifying periods was a direct result of her impairment. The hearing officer quite apparently gave weight to claimant's testimony concerning the limiting effects of her impairment upon her ability to work.

We are satisfied that these findings, and the dispositive conclusions of law based on them and the other findings, are sufficiently supported by the evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref'd n.r.e.); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The Appeals Panel has indicated in Texas Workers' Compensation Commission Appeal No. 93181, decided April 19, 1993, and Texas Workers' Compensation Commission Appeal No. 94882, decided August 18, 1994, that "`good faith' is a subjective state of mind that denotes honesty of purpose, lack of intent to defraud and being faithful one's obligations," and that "the good faith effort necessary for SIBS must be to obtain employment commensurate with the ability to work, not to return to the previous employment or to employment at a certain wage scale." See also Texas Workers' Compensation Commission Appeal No. 951624, decided November 15, 1995. In the latter case, the principal opinion stated that in applying the "good faith attempt" criterion in an underemployment case the hearing officer "may consider not only the kind of work being done, but also the number of hours being worked." As for the "direct result of the impairment" criterion, the hearing officer in the case we consider could believe from claimant's testimony and the report of Dr. G that indeed it was the impairment from her injury, and not her hypertension, the loss of her husband, and her election to work part-time, as the carrier contends, that resulted in Claimant's underemployment.

The decision and order of the hearing officer are affirmed.

Philip F. O'Neill
Appeals Judge

CONCUR:

Susan M. Kelley
Appeals Judge

CONCURRING OPINION

With some reluctance, I concur because of our demanding standard of review and our deference to a hearing officer's fact finding powers and not being fully convinced that there is error as a matter of law. That I might well have found differently is not the issue; rather, it is whether the hearing officer's determination is so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. See Texas Workers' Compensation Commission Appeal No. 92232, decided July 20, 1992. I write separately to express my concern that the requirements to qualify for SIBS are demanding, as provided by the legislature, and each requirement must be established by a claimant.

I find troubling here the ongoing underemployment character of this case. As set forth in detail in the principal opinion, there is no doubt an injury occurred and that the claimant was treated and found to be at MMI some six months later with a 23% IR. There is also no doubt that the claimant returned to full duty with her husband for a lengthy period of time when, according to the claimant, her husband passed away and the nature of her job position changed. She subsequently became unable to perform the requirements of the new position. Ultimately, she secured a much less demanding position for 20 hours per week and is able to work at her own pace and does not experience any injury related problems.

While the part-time position and new pace may well be satisfying, it is quite another matter to hold that it meets the requirements of seeking employment commensurate with the ability to work. The hearing officer found as fact that the claimant satisfied that requirement here. In my opinion, this decision should be restricted to those facts and should not be viewed as in any way relaxing the specific requirements for SIBS as set forth in the statute and rules. "Commensurate with the ability" to work must be just that, and not rest on a mere satisfaction with retaining continuing part-time employment.

Stark O. Sanders, Jr.
Chief Appeals Judge